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Abstract

This is an essay about law in cyberspace. I focus on three interdependent phenomena: a set of political and legal assumptions that I call the jurisprudence of digital libertarianism, a separate but related set of beliefs about the state's supposed inability to regulate the Internet, and a preference for technological solutions to hard legal issues on-line. I make the familiar criticism that digital libertarianism is inadequate because of its blindness towards the effects of private power, and the less familiar claim that digital libertarianism is also surprisingly blind to the state's own power in cyberspace. In fact, I argue that the conceptual structure and jurisprudential assumptions of digital libertarianism lead its practitioners to ignore the ways in which the state can often use privatized enforcement and state-backed technologies to evade some of the supposed practical (and constitutional) restraints on the exercise of legal power over the Net. Finally, I argue that technological solutions which provide the keys to the first two phenomena are neither as neutral nor as benign as they are currently perceived to be. Some of my illustrations will come from the current Administration proposals for Internet copyright regulation, others from the Communications Decency Act and the cryptography debate. In the process, I make opportunistic and unsystematic use of the late Michel Foucault's work to criticise some the jurisprudential orthodoxy of the Net.

Citation

James Boyle,
Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 University of Cincinnati Law Review 177-205
(1997)